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21-08-2012, 21:47   #1
HandsomeRover
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Claim to Right of Way question

Hi All,

Firstly, if this is against the rules (I have read the charter) then I apologise - please close the thread...

I am considering buying property A which backs onto a beach with direct access to the foreshore.

Property B next door which also backs onto the beach has no access to the foreshore, but does have a gate in the boundary ditch between the properties to gain access to the beach through the garden of Property A.

Is it ok for owners/users of Property B (holiday home) to use the garden of Property A to get to the beach?

My solicitor said it would be very difficult to sort it out and to avoid the purchase as it would be more hassle than its worth.

I've read up a bit about Easement by Prescription and the Land and Conveyancing Law Reform Act 2009, and would be keen to avoid walking into a dispute etc.
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21-08-2012, 22:23   #2
Roger Mellie
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First: you should have no reason to doubt your solicitor.

Second: you certainly should trust your solicitor more than some anonymous punter on the world wide web

Third: That said, your solicitor sounds on the money for the following reasons -

The presence of a gate indicates a practice of use of a route over the property in sale to the beach. The absence of a path or track is counterindicative. If there has been continuous use of this route as of right without interruption for in excess of 20 years, then the adjoining owner could claim a right of way by prescription pursuant to the Prescription Act, 1832, common law prescription or the doctrine of lost modern grant. The Act of 2009 as amended will reduce the prescriptive period to 12 years for claims after 2021, so the old 20 year period continues to apply.

A claim in prescription will fail if the properties were in common ownership within the last 20 years, or if the use was based on permission, or for other reasons which you can discuss with your solicitor.

There is a further risk that the adjoining owner could claim an implied right if there was severance of the dominant and servant tenements with the gate in place and a practice of access at the time of severance.

Your solicitor is therefore correct to warn of the likelihood of a claim of a right of way. What is the response of the solicitor for the vendor? Is there an offer of a statutory declaration? You could get your solicitor to talk to his or her colleague to see if the neighbor could be bought off or if there is a reason to have confidence. If the latter, you can ask the vendor for an Opinion of Counsel to satisfy your concerns.

Even if you can live with the right of way, another purchaser may not. It will depreciate the property, so the price will have to take the issue into account. If the price is depressed by more than €20,000, you could always think of taking the risk and then trying to buy off the neighbor. The probability is that such a plan won't work, as none of us behave rationally about land...
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22-08-2012, 00:12   #3
HandsomeRover
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Roger - thank you for your reply.

I believe that a sale on the house fell through recently. This was due (I am led to believe by auctioneer) to vendor's solicitor furnishing recently-spurned purchaser's solicitor with details of correspondence from neighbour's solicitior (acting on neighbour's instruction) and vendor' solicitor at current vendor's time of purchase (2007) relating to neighbour's claim to a right-of-way.

The guy who was was sale agreed then decided to walk away.

The vendors say they ignored the claim at the time, that it does not exist.

There is no path across the garden from the gate down to the beach. The neighbors house is a holiday home, so only limited, seasonal use.

I have 100% faith in my solicitor - he knows his stuff. In the brief conversation I had with him on this, he was flippant about it because it may be difficult for him to get all the facts on the table. If I decide to try to purchase, he will do his job well.

I guess at this stage I don't know if a right of way exists. Am I right in saying it would not be registered anywhere? Or would not have to be registered anywhere? Is it true that if it is not registered by December 1 2012 it needsa court order to be recognised?

Is someone allowed to use another's property as a shortcut to the beach just because taking the road is longer?

Thanks for reading...
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22-08-2012, 06:09   #4
Roger Mellie
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A prescriptive right of way will not be registered unless it is either conceded or established in court. The law of prescription changes on the 1st. of December, 2021, and the 1st of December, 2012 is no longer the relevant date following the amendment of the L&CLRA 2009 by the Civil Law (Miscellaneous Provisions) Act, 2010. The necessity for registration after 2021 just means that once the Court has made the declaration, the right needs to be registered to be an easement at law, so presumably it will have equitable existence between the declaration and registration. The L&CRA 2009 is an unfortunate mess.

A right of way must be beneficial to the dominant tenement, and is often only a short cut, as distinct from the only route to the public road.

If there is no path on the ground, and the use is very limited, the claimant may not succeed. But the question is whether you want to buy into an action to find out?
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22-08-2012, 06:34   #5
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Would you really fall out with your neighbours if they used a small portion of your property to infrequently access a beach.

And this would stop you buying the property.

Wow, just wow.
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22-08-2012, 07:05   #6
Roger Mellie
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And you would buy a property you could not resell? No bank could fund the purchase as no solicitor could certify good marketable title. You would thus be left with only cash purchasers who are prepared to buy despite legal advice to the contrary.

Wow, Madsl, just wow....
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22-08-2012, 08:35   #7
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Quote:
Originally Posted by Roger Mellie View Post
And you would buy a property you could not resell? No bank could fund the purchase as no solicitor could certify good marketable title. You would thus be left with only cash purchasers who are prepared to buy despite legal advice to the contrary.

Wow, Madsl, just wow....
I'm astonished that you feel that this implies there is not clear title to the land. How would right of way diminish clear title? But I'm maybe biased considering I own a property where 99 of my neighbours and I own my garden.

Can't help thinking of Pat Kenny tbh.
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22-08-2012, 12:40   #8
HandsomeRover
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Quote:
Originally Posted by Roger Mellie View Post
A prescriptive right of way will not be registered unless it is either conceded or established in court. The law of prescription changes on the 1st. of December, 2021, and the 1st of December, 2012 is no longer the relevant date following the amendment of the L&CLRA 2009 by the Civil Law (Miscellaneous Provisions) Act, 2010. The necessity for registration after 2021 just means that once the Court has made the declaration, the right needs to be registered to be an easement at law, so presumably it will have equitable existence between the declaration and registration. The L&CRA 2009 is an unfortunate mess.

A right of way must be beneficial to the dominant tenement, and is often only a short cut, as distinct from the only route to the public road.

If there is no path on the ground, and the use is very limited, the claimant may not succeed. But the question is whether you want to buy into an action to find out?

Thanks again Roger.

I should say I am keen to avoid any dispute and any ill-feeling. I would have no issue whatsoever if the neighbour wanted to pass through to the beach - but I would have an issue with persons unknown doing the same.

Its a holiday home so it may get rented out... Possibility of drunken teens, beach parties etc. I'm just thinking ahead to worst case scenario.

I would like to think a conversation with the neighbour could clarify a lot but I'm just not sure what exists in law (by prescription or in deed) if that discussion was not accepted in the spirit which I would intend.

And to which deeds would such a right of way be attached, the neighbours or the house for sale? From above I take it the neighbour's house is the dominant tenement and the house for sale is the servant tenement?
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22-08-2012, 17:33   #9
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You would buy a house that backs on to a beach, that might be washed away at any time!

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23-08-2012, 10:42   #10
Roger Mellie
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Quote:
Originally Posted by MadsL View Post
I'm astonished that you feel that this implies there is not clear title to the land. How would right of way diminish clear title? But I'm maybe biased considering I own a property where 99 of my neighbours and I own my garden.

Can't help thinking of Pat Kenny tbh.
You may not understand the concept of good marketable title, and you will therefore be somewhat lost when you interpose yourself in this discussion. No solicitor could certify a property subject to an articulated and unresolved claim of a prescriptive right of way as having good marketable title. Simple as.

I am surprised to learn that you and 99 neighbors are co-owners of a garden. One would expect a right held in common to use the garden, not a co-ownership. A co-ownership of 100 in a garden would make it unique in the common law world. I would be grateful if you could identify where this extraordinary garden is located.

Finally, I am sorry to hear that you cannot stop thinking of Pat Kenny. That sounds like a dreadful affliction, and I wish you well in your recovery.
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23-08-2012, 10:55   #11
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Quote:
Originally Posted by Roger Mellie View Post
You may not understand the concept of good marketable title, and you will therefore be somewhat lost when you interpose yourself in this discussion. No solicitor could certify a property subject to an articulated and unresolved claim of a prescriptive right of way as having good marketable title. Simple as.
Who has articulated a claim? The OP simply says there is a gate.

Quote:
I am surprised to learn that you and 99 neighbors are co-owners of a garden. One would expect a right held in common to use the garden, not a co-ownership. A co-ownership of 100 in a garden would make it unique in the common law world. I would be grateful if you could identify where this extraordinary garden is located.
A Homeowners Association in the US: I own my house and the land my house actually sits on. Each house has a walled garden attached which is owned by myself and the other 99 residents. Each resident maintains their own walled garden and the communal grounds are maintained out of a common fund to which we pay monthly. We also comunally own two wells, a sewage treatment plant, a clubhouse, tennis courts and gym.

Technically all residents have right of access to everyone's walled garden, however we are nice people and generally wait to be invited.

Quite common in the US...no mystery.


Quote:
Finally, I am sorry to hear that you cannot stop thinking of Pat Kenny. That sounds like a dreadful affliction, and I wish you well in your recovery.
That I'm grateful for, as it made me smile.
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23-08-2012, 11:04   #12
Roger Mellie
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And you spend your days in this American communitarian idyll dreaming of and posting about Pat Kenny? Maybe you should enjoy your bizarre combination of 100 adjoining walled gardens owned in common more often?
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23-08-2012, 18:42   #13
MadsL
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And you spend your days in this American communitarian idyll dreaming of and posting about Pat Kenny? Maybe you should enjoy your bizarre combination of 100 adjoining walled gardens owned in common more often?
Stick around boards.ie for a while, you will find we are a geographically dispersed bunch. As for Pat Kenny, 15 years in Ireland leaves its scars: Man, the flashbacks to the Late Late, the flashbacks...

As to communitarian idyll and bizarre combination, depends how important freedom from regulation is to you. Let's just say our rulebook is pretty detailed right down to the colour of our deck.

And back OT, I apologise, I missed the fact that there was correspondence on record about the putative right of way. Would it not be expedient if the poster were to ask the vendor to ask their neighbour to abandon any claim in exchange for a written agreement for access from the new purchaser. This could be restricted to the owner (neighbour) rather than any rented tenants.

This avoids court cases and would seem to be a win-win for all concerned.

(runs and hides for suggesting mediation in a Legal thread)

Last edited by MadsL; 23-08-2012 at 19:47.
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